Com. v. Litvinov, D. ( 2019 )


Menu:
  • J-S65023-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellant
    v.
    DMITRIY V. LITVINOV
    Appellee                   No. 1771 MDA 2017
    Appeal from the PCRA Order Entered November 3, 2017
    In the Court of Common Pleas of Centre County
    Civil Division at Nos: CP-14-CR-0000364-2011, CP-14-CR-0000462-2010,
    CP-14-CR-0000464-2010, CP-14-CR-0001090-2010, CP-14-CR-0001139-
    2010, CP-14-CR-0001157-2010, CP-14-CR-0001158-2010, CP-14-CR-
    0001159-2010, CP-14-CR-0001161-2010, CP-14-CR-0001162-2010, CP-
    14-CR-0001163-2010, CP-14-CR-0001164-2010
    BEFORE: SHOGAN, and STABILE, McLAUGHLIN, JJ.
    MEMORANDUM BY STABILE, J.:                        FILED JANUARY 16, 2019
    The Commonwealth of Pennsylvania appeals from the November 3,
    2017 order reinstating the direct appeal rights of Appellee, Dmitriy V. Litvinov
    pursuant to Litvinov’s petition under the Post Conviction Relief Act (“PCRA”)
    42 Pa.C.S.A. §§ 9541-9545. We affirm.
    The record reveals that, on June 22, 2012, a jury found Litvinov guilty
    of multiple counts of robbery, theft by unlawful taking, receiving stolen
    property, kidnapping, recklessly endangering another person, conspiracy, and
    related offenses.   On October 17, 2013, after a successful Commonwealth
    appeal, the trial court resentenced Litvinov to an aggregate thirty-nine years
    and four months to seventy-eight years and eight months of incarceration. In
    J-S65023-18
    July of 2012, Litvinov paid attorney Alexander Z. Talmadge a $17,000.00
    retainer to represent Litvinov on direct appeal.                 Talmadge entered his
    appearance for Litvinov on October 18, 2012 but withdrew it on December 27,
    2012 so that the public defender, David Crowley, could handle the post-
    sentence motion. Talmadge told Crowley that Litvinov retained him only for
    the appeal, not for the post-sentence motions, and that he would reenter his
    appearance upon resolution of the post-sentence motions. Crowley handled
    the post-sentence motions and provided Talmadge with paperwork to
    substitute himself as counsel after the motions were denied. Talmadge never
    again entered his appearance on behalf of Litvinov and did not file a direct
    appeal.
    On August 20, 2015, Litvinov filed, in this Court, a pro se application for
    reinstatement of his direct appeal rights. He filed his first PCRA petition in the
    Centre County Court of Common Pleas on December 10, 2015.                        The PCRA
    court conducted a hearing on September 8, 2017 and, on November 3, 2017
    entered   an    order    reinstating   Litvinov’s     direct     appeal     rights.      The
    Commonwealth filed this timely appeal. The Commonwealth argues the PCRA
    court erred in granting relief because 1) Talmadge was not Litvinov’s counsel
    of record at the relevant time; 2) Litvinov did not exercise due diligence in
    ascertaining that Talmadge never filed a direct appeal; and 3) Litvinov failed
    to file a PCRA petition within 60 days of August 8, 2012, the date on which he
    admittedly     learned   of   Talmadge’s    failure    to      file   the   direct    appeal.
    -2-
    J-S65023-18
    Commonwealth’s Brief at 4. Finding no merit in any of these contentions, we
    affirm.
    Our standard for reviewing a PCRA court’s order is well-settled:
    In PCRA appeals, our scope of review is limited to the
    findings of the PCRA court and the evidence on the record of the
    PCRA court’s hearing, viewed in the light most favorable to the
    prevailing party. Because most PCRA appeals involve questions
    of fact and law, we employ a mixed standard of review. We defer
    to the PCRA court’s factual findings and credibility determinations
    supported by the record. In contrast, we review the PCRA court’s
    legal conclusions de novo.
    Commonwealth v. Reyes-Rodriguez, 
    111 A.3d 775
    , 779 (Pa. Super. 2015)
    (internal citations and quotation marks omitted) (en banc), appeal denied,
    
    123 A.3d 331
    (Pa. 2015).
    We first consider our jurisdiction. Section 9545 of the PCRA provides
    that a petitioner must file his petition within one year of the finality of the
    judgment of sentence. 42 Pa.C.S.A. § 9545(b)(1). Failure to comply with the
    PCRA’s timeliness requirements deprives the courts of jurisdiction to entertain
    a petition. Commonwealth v. Bennett, 
    930 A.2d 1264
    , 1267 (Pa. 2007).
    Instantly, the trial court imposed sentence on October 17, 2013. Litvinov’s
    sentence became final thirty days later, when he failed to file a direct appeal.
    Litvinov’s August 20, 2015 pro se petition seeking reinstatement of his direct
    appeal rights was facially untimely (for reasons we will explain below, the law
    treats Appellant’s pro se petition to this Court as a PCRA petition, even though
    he filed it in the wrong court). Litvinov must, therefore, plead and prove the
    applicability of one of the timeliness exceptions set forth in § 9545(b)(1)(i-iii).
    -3-
    J-S65023-18
    The   PCRA     court   found   Litvinov’s   petition   timely   pursuant   to
    § 9545(b)(1)(ii), pursuant to which a petitioner must prove that “the facts
    upon which the claim is predicated were unknown to the petitioner and could
    not have been ascertained by the exercise of due diligence[.]” 42 Pa.C.S.A.
    § 9545(b)(1)(ii).    The PCRA court also found that Litvinov presented the
    petition within 60 days of the date on which he learned of counsel’s failure, in
    accord with § 9545(b)(2). We will not disturb the PCRA court’s findings with
    regard to a PCRA petition unless the certified record provides no support for
    those findings.     Commonwealth v. Williamson, 
    21 A.3d 236
    , 241 (Pa.
    Super. 2011).
    Pennsylvania courts have held that counsel’s failure to perfect an appeal
    qualifies as a newly discovered fact under § 9545(b)(1)(ii) because it
    constitutes the abandonment by counsel of the client. 
    Id. at 241-42;
    see
    also, 
    Bennett, 930 A.2d at 1272-74
    . In Williamson, counsel failed to file a
    timely petition for allowance of appeal to the Supreme Court.          
    Id. at 242.
    Similarly, in Bennett, the counsel failed to file an appellate brief. 
    Bennett, 930 A.2d at 1265
    . The Bennett Court held that “Appellant has made sufficient
    allegations to invoke subsection (b)(1)(ii). Appellant alleges that he did not
    receive the review to which he was entitled through no fault of his own. […]
    In such an instance, Appellant must be given the opportunity to seek the
    review to which he or she was entitled.” 
    Id. at 1274.
    That rationale applies
    with full force here. Litvinov retained Talmadge and paid him $17,000.00 to
    -4-
    J-S65023-18
    represent him on direct appeal. After the trial court denied Litvinov’s post-
    sentence motions,1 Talmadge took no action on Litvinov’s behalf, thus
    depriving him of the appellate review to which he was entitled.
    Next, we must determine whether Litvinov acted with due diligence in
    learning of Talmadge’s failure. The record reveals that Litvinov sent Talmadge
    a letter on January 11, 2013, informing Talmadge of the trial court’s denial of
    Litvinov’s post-sentence motion on January 4, 2013. N.T. Hearing, 9/8/17, at
    60, Exhibit 16.      In that letter, Litvinov expressed his understanding that
    Talmadge would represent him going forward on direct appeal. 
    Id. For his
    part, Crowley confirmed with Litvinov that Talmadge would represent him on
    direct appeal. 
    Id. at 16.
    In response to Talmadge’s request as to Litvinov’s
    whereabouts, Crowley informed Talmadge that Litvinov was at SCI Forrest
    due to some construction at SCI Rockview. 
    Id. On May
    19, 2013, Talmadge wrote a letter to Litvinov stating that he
    was preparing Litvinov’s appeal.           
    Id. at Exhibit
    18.   In October of 2013,
    Litvinov    called    Talmadge       to    discuss   his   resentencing   after   the
    Commonwealth’s successful appeal. 
    Id. at 66.
    Litvinov contacted Talmadge
    again in midsummer of 2014.               
    Id. at 67-68.
       Talmadge did not accept
    Litvinov’s calls after that, but Talmadge spoke to Litvinov’s family, and they
    ____________________________________________
    1  Talmadge filed a premature notice of appeal before he realized the post-
    sentence motions were not yet argued. He withdrew that appeal and took no
    further action in this case.
    -5-
    J-S65023-18
    kept Litvinov apprised of Talmadge’s communications. 
    Id. at 68.
    The record
    confirms that Talmadge met with Litvinov’s sister and father at various times
    in 2013, 2014, and 2015. 
    Id. at 46,
    69. Litvinov also sent Talmadge letters
    in February and May of 2015, checking on, among other things, the status of
    his appeal. 
    Id. at 68-69.
    Approximately one month before Litvinov wrote the
    May 13, 2015 letter, Talmadge met with Litvinov’s father and/or sister and
    represented that he had not heard anything from the appellate court. 
    Id. at 69.
    Talmadge finally wrote to Litvinov on July 11, 2015, but said nothing
    about any pending appeal. 
    Id. at 69-70.
    On July 21, 2015, Litvinov wrote a letter to his Court, asking about the
    status of his appeal.   
    Id. at 71,
    Exhibit 23.     On August 5, 2015, Litvinov
    received from this Court a docketing statement indicating that no direct appeal
    was ever filed.   Shortly thereafter, Litvinov mailed to this Court a pro se
    application for the right to appeal nunc pro tunc. A return receipt indicates
    that personnel from the Administrative Office of Pennsylvania Courts received
    Litvinov’s filing on August 20, 2015. 
    Id. at 72-73,
    Exhibit 25. The record
    does not indicate that the Superior Court Prothonotary’s office ever received
    Litvinov’s application or filed it. On November 2, 2015, Litvinov wrote a letter
    to this Court seeking an update on the status of his nunc pro tunc appeal. 
    Id. at 73.
    Our Prothonotary’s office responded on November 6, 2015, notifying
    Litvinov that no appeal was pending, and that any notice of appeal improperly
    filed in this Court would have been forwarded to the trial court for proper filing.
    -6-
    J-S65023-18
    
    Id. at 73-74.
    Subsequently, on December 21, 2015, Litvinov filed a pro se
    PCRA petition in the Centre County Court of Common Pleas.
    In light of the foregoing facts, we discern no error in the PCRA court’s
    conclusion that Litvinov acted with due diligence. Litvinov paid Talmadge’s
    retainer, asked for a direct appeal, and maintained contact with Talmadge
    through the summer of 2015. As late as April of 2015, Talmadge represented
    to Litvinov’s family that he had not heard anything from the appellate court,
    thus implying that an appeal was pending.        After receiving a letter from
    Talmadge, in July of 2015, that made no mention of an appeal, Appellant
    wrote to this Court to ascertain the status of the appeal. He received a docket
    sheet, printed on August 5, 2015, indicating that no appeal was pending. In
    summary, Litvinov retained and paid Talmadge to represent him on direct
    appeal, and for more than a year and a half after Litvinov’s resentencing,
    Talmadge’s communications with Litvinov and his family, regarding the status
    of the appeal, ranged from nonresponsive to misleading. The late filing of the
    instant PCRA petition was not due to Litvinov’s lack of diligence.
    Next, we must consider whether Litvinov filed the instant petition within
    60 days of the first date on which he could have filed it, in accord with
    § 9545(b)(2).   As set forth above, Litvinov filed, in this Court, a pro se
    application for reinstatement of his direct appeal rights.    A return receipt
    indicates that the Administrative Office of Pennsylvania Courts received the
    filing on August 20, 2015, only fifteen days after this Court printed a docket
    -7-
    J-S65023-18
    sheet in response to Litvinov’s inquiry as to the status of his appeal. 2 Well-
    settled law indicates that any collateral document requesting relief available
    under the PCRA will be treated as a PCRA petition.           42 Pa.C.S.A. § 9542;
    Commonwealth v. Kutnyak, 
    781 A.2d 1259
    , 1261 (Pa. Super. 2001). Thus,
    the PCRA court was correct in concluding that Litvinov’s August 20, 2015 filing,
    which requested relief available under the PCRA, should be treated as a PCRA
    petition.
    Concerning Litvinov’s mistake in filing his application with this Court
    rather than the Centre County Court of Common Pleas, the Judiciary Code
    provides the following:
    (a) General rule.--If an appeal or other matter is taken to or
    brought in a court or magisterial district of this Commonwealth
    which does not have jurisdiction of the appeal or other matter, the
    court or magisterial district judge shall not quash such appeal or
    dismiss the matter, but shall transfer the record thereof to the
    proper tribunal of this Commonwealth, where the appeal or other
    matter shall be treated as if originally filed in the transferee
    tribunal on the date when the appeal or other matter was first
    filed in a court or magisterial district of this Commonwealth. A
    matter which is within the exclusive jurisdiction of a court or
    magisterial district judge of this Commonwealth but which is
    commenced in any other tribunal of this Commonwealth shall be
    transferred by the other tribunal to the proper court or magisterial
    district of this Commonwealth where it shall be treated as if
    originally filed in the transferee court or magisterial district of this
    Commonwealth on the date when first filed in the other tribunal.
    ____________________________________________
    2 Litvinov indicates he received the docket sheet on August 8, 2015. Litvinov’s
    Brief at 26. We have not been able to confirm that date in the record. For
    purposes of our analysis under § 9545(b)(2), Litvinov’s petition was timely
    regardless of whether we charge him with notice as of August 5 or August 8
    of 2015.
    -8-
    J-S65023-18
    42 Pa.C.S.A. § 5103(a).     Relying on § 5103(a), the PCRA court deemed
    Litvinov’s PCRA petition filed on August 20, 2015 the date of its receipt in the
    Administrative Office of Pennsylvania Courts. For reasons not clear from the
    record, Litvinov’s August 20, 2015 filing was never received by the Superior
    Court Prothonotary, nor was it forwarded to the Centre County Court of
    Common Pleas for proper filing in accord with § 5103(a).          Under these
    circumstances, we agree with the PCRA court’s conclusion that Litvinov filed a
    timely petition for permission to file an appeal nunc pro tunc, and that the
    apparent mishandling of the August 20, 2015 filing resulted from a breakdown
    in the courts not attributable to Litvinov. In light of all of the foregoing, we
    conclude the PCRA court properly exercised jurisdiction over Litvinov’s petition
    pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii) and (2).
    We now turn to the merits. An unjustified failure to file a requested
    direct appeal results in presumed prejudice. Commonwealth v. Lantzy, 
    736 A.2d 554
    , 571-72 (Pa. 1999).      In such a case, the accused is entitled to
    reinstatement of his direct appeal rights without pleading and proving a claim
    of ineffective assistance of counsel in accord with Strickland v. Washington,
    
    466 U.S. 668
    (1984) and Commonwealth v. Pierce, 
    527 A.2d 973
    (Pa.
    1987). 
    Id. at 572-73.
    Instantly, as we have already discussed, the record
    confirms that Litvinov retained Talmadge to represent him on direct appeal,
    and Talmadge failed to file an appeal. The Commonwealth does not dispute
    those facts, but argues that Litvinov is not entitled to relief because Talmadge
    -9-
    J-S65023-18
    was not his counsel of record at the pertinent time.          In essence, the
    Commonwealth argues that Litvinov has no recourse because the lawyer he
    retained abandoned him without entering an appearance. The Commonwealth
    cites no law for this proposition, and we have uncovered none. As the PCRA
    court put it, “[i]t would be nonsensical to hold that because the attorney hired
    to file the appeal failed to enter an appearance Petitioner has waived his right
    to an appeal.” PCRA Court Opinion, 11/3/17, at 8. Uncontroverted evidence
    establishes a lawyer/client relationship between Litvinov and Talmadge,
    inasmuch as Litvinov paid Talmadge a $17,000.00 retainer to represent him
    on direct appeal.
    For his part, Talmadge testified that Litvinov’s sister informed him that
    they hired another attorney to handle Litvinov’s appeal, and that he was
    directed to focus his attention on Litvinov’s deportation issues.     Litvinov’s
    sister, Alena Litvinova, testified at the PCRA hearing and denied giving
    Talmadge any such directive. N.T. Hearing, 9/8/17, at 57. She testified that
    Talmadge was supposed to handle both the appeal and the deportation
    proceeding. 
    Id. The PCRA
    court accepted Litvinova’s testimony and found
    Talmadge not credible. PCRA Court Opinion, 11/3/17, at 9.
    In summary, the evidence of record supports the PCRA court’s findings
    that Talmadge was Litvinov’s lawyer for purposes of direct appeal, and that
    Talmadge abandoned Litvinov. Under these circumstances, Litvinov is entitled
    to reinstatement of his direct appeal rights.
    - 10 -
    J-S65023-18
    The Commonwealth seeks to avoid this result based on § 9543(b), which
    provides that PCRA relief should be denied were the petitioner’s delay in filing
    the petition prejudice’s the Commonwealth’s ability to respond to the petition
    or to retry the petitioner. 42 Pa.C.S.A. § 9543(b). The Commonwealth alleges
    its ability to retry Litvinov will be prejudiced because the trial court already
    has ordered the return of property that was pertinent evidence at Litvinov’s
    trial.    The Commonwealth’s argument rests largely on its assertion that
    Litvinov failed to exercise due diligence, an assertion we already have
    rejected. Indeed, § 9543(b) expressly provides that “[t]his subsection does
    not apply if the petitioner shows that the petition is based on grounds of which
    the petitioner could not have discovered by the exercise of reasonable
    diligence before the delay became prejudicial to the Commonwealth.”          42
    Pa.C.S.A. § 9543(b). In light of our conclusion that the delay in filing this
    petition was not the result of Litvinov’s lack of diligence, § 9543(b) is
    inapplicable.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/16/2019
    - 11 -